Deficit Reduction: Democracy, Technocracy, and

DEFICIT REDUCTION: DEMOCRACY,TECHNOCRACY, AND CONSTITUTIONALISM

IN THE EUROPEAN UNION

PAUL D. MARQUARDT*

I. INTRODUCTION

The past dozen or so years have seen the public image of theEuropean Community (EC)-now the European Union(EU)'--transformed from that of a customs union with grand ambi-tions to a central actor on the global stage. This apparently suddenrise to prominence resulted from the confluence of the extendedinternal development of the EU-symbolized by the Single EuropeanAct's (SEA) "1992" initiative 2 -and the radical change in WesternEurope's external environment brought about by the end of the coldwar.3 In the realms of both high and low politics, from the fate ofthe Bosnian Muslims to the fate of Camembert cheese,4 the EU is

* A.B. 1990, University of Michigan; M.AJJ.D. 1994, Yale University.

1. TREATY ON EUROPEAN UNION [EU TREATY]. The EU TREATY introduced the term"European Union." EU TREATY, tit. 1, art. A. The European Union has historically beenreferred to as the European Community. General descriptive terms now designate theorganization the "European Union," "Union," or "EU." However, the terms "EuropeanCommunity," "Community," or "EC" are retained where appropriate.

2. Single European Act, 1987 OJ. (L 169) 1, as revised in 1987 OJ. (L 304) 46. See gen-erally Claus-Dieter Ehlermann, The "1992 Project". Stages, Structures, Results and Prospects, 11MICH. J. INT'L L. 1097 (1990) (detailing the history and development of the SEA); AndrewMoravcsik, Negotiating the Single European Ac4 in THE NEw EUROPEAN COMMUNITY:DEClSiONMAKING AND INSTITUnONAL CHANGE [hereinafter THE NEW EC] 41 (Robert 0.Keohane & Stanley Hoffmann eds., 1991) (analyzing the history of the SEA and its presentsuccess).

3. The collapse of the East-West confrontation not only decreased external threats to theCommunity; it also increased pressure on the EC member states to act more cohesively in orderto fill the leadership void. See Finn Laursen, Explaining the Intergovernmental Conference onPolitical Union, in THE INTERGOVERNMENTAL CONFERENCE ON POLITICAL UNION:INSTITUTIONAL REFORMS, NEW POLICIES AND INTERNATIONAL IDENTITY OF THE EUROPEANCOMMUNITY 229,240-41 (Finn Laursen & Sophie Vanhoonacker eds., 1992) [hereinafter THEIGC ON POLITICAL UNION].

4. See Noel Malcolm, Is There a Doctor in the House?: The EC's Fantasies ofSuperpowerdom have had Consequences that are all too Real, NAT'L REV., July 5, 1992, at 39;

266 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol. 4:265

now the relevant forum for many of the most important decisionsshaping the lives of Europeans.

But by what right have the institutions of the EU assumed suchpower? Many analysts discuss a "democratic deficit" in the Union, adeficit created by the allocation of more and more functions to theexisting Union organs without a corresponding strengthening of in-stitutions to provide democratic oversight.5 The concern these writersexpress is genuine, and their attempts to address it are made in goodfaith. The difficulty, though, is that the solutions currently beingproposed do not reach to the root of the problem.6

The European Parliament has been directly elected by thecitizens of the member states since 1979. It has thus been thenatural focus of efforts to democratize the EU. One apparentlysimple solution to the EU's problems of democratic legitimacy is toreform its internal workings to give the democratically electedEuropean Parliament more power.' The Union's problems, though,are more basic than the reformers realize. The democratic deficit isless a question of formal accountability than of the legitimacy of theEU as a new supranational polity, and as such it will not be amenableto the technocratic quick fix. Only a fundamental political mobiliza-tion and transformation will create the sense of dual citizenship theEuropean Union needs to truly legitimate its power.

This Article argues that constitutionalism provides the best meansfor legitimizing the EU in the eyes of Europe's people. As Part IIillustrates, the gap between popular acceptance of the EU and thefunctioning of Union governance is not easily bridged by altering theformal configuration of the Union's governing organs. Uneasinesswith the EU runs deeper than its organizational chart; the Union may

Runny, Smelly, and Safe, ECONOMIST, June 27, 1992, at 60.5. See EUROPOLITICS: INSTITUTIONS AND POLICYMAKING IN THE "NEW" EUROPEAN

COMMUNITY 277-78 (Alberta M. Sbragia ed., 1992) [hereinafter EUROPOLITICS]; MARTINHOLLAND, EUROPEAN COMMUNITY INTEGRATION 85-87 (1993); SIMON SERFATY, TAKINGEUROPE SERIOUSLY 158-64 (1992); Finn Laursen, The Maastricht Treaty: A Critical Evaluation,in THE IGC ON POLITICAL UNION, supra note 3, at 249, 249-52; Joseph H.H. Weiler, TheTransformation of Europe, 100 YALE L.. 2403, 2466-74 (1991); Shirley Williams, Sovereigntyand Accountability in the European Community, in THE NEW EC, supra note 2, at 155, 162-72.

6. See discussion infra part IV.7. The Treaty of Rome made provisions for the direct election of the European

Parliament. TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY [EC TREATY]art. 138. However, an implementing decision was not taken until 1976. Council Decision 76/787,1976 O.J. (L 278) 5. For an overview of the European Parliament's structure, history, andduties, see FRANCIS JACOBS ET AL, THE EUROPEAN PARLIAMENT (2d ed. 1992).

8. See infra text accompanying notes 32-35.

DEFICIT REDUCTION IN THE EUROPEAN UNION

only gain legitimacy by fundamental adjustments. Part III describesthe characteristics of legitimacy, noting that a government's legitimacydepends not so much on formal structures as on a popular belief thatthose structures properly serve the citizenry. Thus, as Part IVexplains, of utmost concern to European integrationists is thefundamental question of whether the EU is a legitimate polity.

Constitutionalism, providing an opportunity for popular discourseon fundamental concerns of government, is the best means tolegitimate governing authority. Part V describes the process by whichcitizens construct fundamental laws. The present EU treaties, lackingthe characteristics of fundamental law, cannot legitimate the EU'sgoverning structure in the eyes of the people of Europe. As thepresent time manifests a unique opportunity to construct a newUnion, a federal constitutional structure is the best hope for legitimiz-ing an integrated Europe.

II. THE DEMOCRATIC DEFICIT

The EU's development has been marked by a great expansion ofits powers over time.9 The debate over the reasons for these changesis far from settled," but there is little doubt about the result: moredecisions are being taken by Union institutions that were once takenby national governments alone." The problem is that those institu-tions were designed with the politicians of Europe rather than thepeoples of Europe in mind.

A. The Traditional View

Jean Monnet is widely regarded as the symbolic father and singlemost influential architect of the European Community. 2 Monnet'sconception of the EC was unabashedly elitist, as befitted someone

9. For an excellent account of the historical development of the European Community,see Weiler, supra note 5.

10. Among the better recent attempts at analyzing the development of the EC areEUROPOLITICS, supra note 5 and THE NEW EC, supra note 2.

11. See Robert 0. Keohane & Stanley Hoffmann, Institutional Change in Europe in the1980's, in THE NEW EC, supra note 2, at 1-3. The 1992 initiative associated with the SEA, forexample, required harmonization of national laws in hundreds of areas. Completing the InternalMarket: White Paper from the Commission to the European Council, COM(85)310 final[hereinafter White Paper]; Single European Act art. 8A and Declaration.

12. See MICHAEL BURGESS, FEDERALISM AND EUROPEAN UNION: POLITICAL IDEAS,INFLUENCES AND STRATEGIES IN THE EUROPEAN COMMUNITY, 1972-1987, at 55-59 (1989);

DEREK W. URWIN, THE COMMUNITY OF EUROPE: A HISTORY OF EUROPEAN INTEGRATION

SINCE 1945, at 172 (1991).

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whose influence was rooted in his access to European leaders.1 3 Inhis vision, far-sighted European statesmen were gradually to build anever-thicker web of pan-European institutions, and public supportwould naturally follow at some point in the future. Indeed, Monnetsaw public participation in the early stages of Community develop-ment as an evil to be avoided. 4 It was only after European leadershad gently guided the people into a de facto new Europe that popularopinion could be trusted: "I thought it wrong to consult the peoplesof Europe about the structure of a Community of which they had nopractical experience."1"

Monnet's elite-driven vision, while successful in creating aEuropean Community with meaningful powers, has drawn increasingcriticism." Precisely because Community institutions have slowlygrown in power, many are troubled by the exclusion of the peoples ofEurope." Monnet's pragmatism has started to look more likepaternalism, and there is a growing sense that the EU does not fullylive up to the democratic ideals of Europe. The turmoil surroundingthe Maastricht Treaty is but the latest expression of this trend; 8

Denmark, whose voters initially rejected the treaty, has traditionallybeen among the most skeptical of the legitimacy of decisions taken inBrussels."

13. See HOLLAND, supra note 5, at 8-13. Monnet's long and unusual career included severalposts of some importance in French and international bureaucracies, but his overarchinginfluence on European affairs was exerted largely beyond the bounds of his formal positions.For an account of Monnet's life, see JEAN MONNET THE PATH TO EUROPEAN UNITY (DouglasBrinkley & Clifford Hackett eds., 1991).

14. BURGESS, supra note 12, at 46-48, 54.15. Id. at 54 (quoting Jean Monnet).16. Id. at 55-60 (After the creation of the Community, "the political centre... remained

weak and impotent, lacking the capacity to go beyond what existed and unable to adapt to newforces and problems encountered at a European level."). Id. at 58.

17. See, e.g., Williams, supra note 5, at 169 ("Strasbourg is inaccessible to Greek peasants,Portuguese fishermen, Spanish factory workers, and Scottish bank clerks.., without citizenparticipation, Citizens' Europe languishes. For all the high-pressure public relations on Europe1992, the man and woman in the European street feel uninvolved.").

18. See DAVID ARTER, THE POLITICS OF EUROPEAN INTEGRATION IN THE TWENTIETH

CENTURY 212-16 (1993); WOLFGANG H. REINICKE, BUILDING A NEW EUROPE: THECHALLENGE OF SYSTEM TRANSFORMATION AND SYSTEMIC REFORM 122-23 (1992).

19. The Danish Parliament, for example, maintains closer control over its government'spositions in EC institutions than do the parliaments of other states; EC debates and referendaare also a prominent feature of national politics. See Finn Laursen, Denmark and EuropeanPolitical Union, in THE IGC ON POLITICAL UNION, supra note 3, at 63, 63-70; Williams, supranote 5, at 159-60.

DEFICIT REDUCION IN THE EUROPEAN UNION

The vague sense of unease about the democratic foundations ofthe Union has traditionally been analyzed in terms of the EC's formalstructure. The most frequent targets of criticism are the two mostpowerful organs of the Union, the European Commission (Commis-sion) and the Council of the European Union (Council). TheCommission is the backbone of the Brussels bureaucracy; it has wideranging executive responsibilities in the supervision and implementa-tion of community activities and is the source of new proposals forUnion action."° The Council is the primary decision-making body,and as such, exerts considerable influence over the other organs, espe-cially in developing policy.2' Criticism of the Commission is ratherstraightforward.2 That body is not elected, but rather appointed tofixed terms by common accord of the member states.3 Onceappointed, Commissioners are essentially unaccountable.24 TheCommission can be removed en banc by the European Parliament,but disciplining individual Commissioners is not possible.' TheEuropean Parliament has never used the power to remove theCommission as a whole and, dependent on the EU for such power asit does have, is unlikely ever to create an institution-threatening crisisby firing the entire executive organ of the Union.26

While the Commission is still influential, its power has beenchecked by the Council, the organ made up of ministers from themember state governments. The Council provides a means wherebynational governments can oversee Union decision making. Suchintergovernmental oversight and control of Union action has increasedin direct proportion to the power allocated to the Union.27 Thedevelopment of intergovernmental checks on Union authority,however, does not satisfy those who criticize the Union's democraticshortfall. Decisions of the Council are made by government ministers

20. See B. Guy Peters, Bureaucratic Politics and the Institutions of the European Community,in EuROPOLrrlcs, supra note 5, at 75.

21. See Id. at 78-84; NEILL NUGENT, THE GoVERNMENT AND POLITICS OF THE EUROPEAN

COMMuNITY 376 (2d ed. 1991).22. See, e.g., Laursen, supra note 5, at 250 ("The Community claims to be democratic...

[y]et, how democratic is it to be run by a non-elected Commission and a Council that meets incamera?").

23. EC TREATY art. 158.24. See Peters, supra note 20, at 98-100.25. EC TREATY art. 144.26. JOHN PINDER, EUROPEAN COMMUNITY: THE BUILDING OF A UNION 36-37 (1991)

(addressing the relationship between the European Parliament and the Commission).27. Weiler, supra note 5, at 2423-30.

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behind closed doors. Many note that this process, which can resultin Union action binding on the member states, decreases theaccountability of national executives to their parliaments. 29

Other forces further constrain oversight by national parliaments.The detailed workings of the EU are frequently arcane and confusing,the government of the day often limits the issues on which thenational parliament is consulted, and when the parliament is consultedit is usually after the most basic decisions have already been made.Even when ministers do report back to parliament, it is all too easyto blame unpopular aspects of a decision on obstinate partners; noone actor is accountable for the final product as a whole." Further-more, the process disrupts established national channels of lobbyingand influence. Only the best organized national groups can have aneffective voice in EU decision making.31

In keeping with the structural focus of their critiques, mostobservers of the Union argue that the solution to the EU's problemsof democratic legitimacy is to shift the balance of power among theUnion's institutions.32 If the Commission is completely unaccount-able to democratic bodies and the Council that has evolved to checkit is imperfectly so, the obvious remedy is to strengthen the EuropeanParliament as a check on the Council.33 The European Parliamentis now directly elected (before 1979, national parliaments delegatedmembers to it),34 and it thus seems to be the one EU institution withimpeccable democratic credentials. If it is given powers of co-decisionwith the Council on new legislation and if the Commission is madeaccountable to it, the problems highlighted by the above-mentionedcriticisms could be solved. A democratic institution would beintimately involved with all phases of EU action.

28. See Laursen, supra note 5, at 250; Williams, supra note 5, at 163.29. NUGENT, supra note 21, at 371; Williams, supra note 5, at 158-60; see Juliet Lodge, EC

Policymaking, Institutional Considerations, in THE EUROPEAN COMMUNITY AND THECHALLENGE OF THE FUTURE 31-32 (Juliet Lodge ed., 1989);

30. See PINDER, supra note 26, at 38-39.31. See Lodge, supra note 29, at 51-54; Weiler, supra note 5, at 2453-54.32. BURGESS, supra note 12, at 93-101; Laursen, supra note 5, at 250; James O'Connell, The

Making of Europe: Strengths, Constraints, and Resolutions, in A CONSTITUTION FOR EUROPE23,36-37 (Preston King & Andrea Bosco eds., 1991); see NUGENT, supra note 21, at 164-65,300-12.

33. See Williams, supra note 5, at 167-69.34. Juliet Lodge, The European Parliament-From 'Assembly' to Co-Legislature: Changing

the Institutional Dynamics, in THE EUROPEAN COMMUNITY AND THE CHALLENGE OF THEFUTURE, supra note 29, at 58, 60; NUGENT, supra note 21, at 142.


In short, in the eyes of many scholars a strong EuropeanParliament means a democratic European Union, and the source ofthe EU's current problems is simply the European Parliament'sweakness. Lest the point appear overstated, the democratic deficit iscommonly defined in terms such as "the gap between the powerstransferred to the Community level and the control of the electedParliament over them."35 Thus, the question of democratic account-ability is easily answered by shifting power among the already-existingparts of the EU machine; all that is required is another step in theincremental process of institutional development that has carried theUnion to this point. This is the "technocratic" view; it proposesexpert institutional redesign as the solution to the problem of theEU's exclusion of the peoples of Europe.

B. A Critique, or, Technocracy Is Not Democracy

There are serious problems with the mainstream analysis of andprescription for the democratic deficit. There is no doubt that thechanges prescribed would be worthwhile and would lead to a Unionthat is somewhat more democratic. However, they would not benearly as effective as their proponents think, and the democraticdeficit would continue to yawn wide even if the contemplated changeswere fully enacted.

The difficulty is that there is something more afoot than a breakin the chain of democratic control. Indeed, there is no gap in theformal democratic accountability of the Council of the EuropeanUnion. The ministers are, after all, members of the freely electednational governments of the day acting within their legal authority,and they remain individually accountable to their governments fortheir actions.36 Furthermore, they are acting within the confines ofEuropean institutions that have been duly approved by nationaldemocratic processes. Though the national parliaments may facesome tactical obstacles in overseeing EU actions, they certainly retainthe power to force a more accountable pattern of decision making

35. Williams, supra note 5, at 162; see also ERNESr WISTRICH, AFTER 1992: THE UNITEDSTATES OF EUROPE 102 (1991); Peters, supra note 20, at 90; cf. Weiler, Supra note 5, at 2466(noting the prevalence of such definitions).

36. See Williams, supra note 5, at 158-60 (discussing the relationship between ministers andnational parliaments).

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through their control over national affairs;37 in fact, the DanishFolketing has been quite successful in doing exactly that.38

This is not to say that the link between the people and EUdecisions has not become attenuated in Union institutions; it has."It is possible to criticize European decision making on those groundseven while recognizing that formal accountability still exists." Itbears noting, though, that the attenuation of parliamentary controlinvolved in the EU's operations is not very different from the realitiesof modem national political life. Similar criticisms-that citizens'access to government has been reduced and many governmentalactors are no longer clearly accountable to the electorate for theiractions-can and have been made about the modem administrativestate in general.41 However, there is not the same widespread senseof democratic crisis surrounding the bureaucracies of Paris as onefinds in Brussels. The differences in the structure of democraticcontrol alone are not great enough to account for the profounddifference in perceived democratic legitimacy.

If the European Union's democratic deficit is not solely theproduct of institutional features, reform strategies that only changethe institutions are unlikely to be effective. A deeper transformationof the European polity is needed, but first we must obtain a clearerview of the problems to be addressed.

III. THE QUESTION OF LEGITIMACY EXPLORED

Joseph Weiler's distinction between formal and social legitimacyprovides a useful beginning in unearthing the roots of Europe's demo-cratic deficit. Weiler defines formal legitimacy as "legality understoodin the sense that democratic institutions and processes created the law

37. Techniques of control can include questioning ministers, withholding approval ofgovernment measures, or altering national legal requirements. France and Germany haverecently amended their constitutions to increase parliamentary control over EC policy, but it istoo soon to tell how well the modifications will work in practice. FR. CONST. ART. 88-4; GER.CONST. ART 23.

38. NUGENT, supra note 21, at 375; Laursen, supra note 19, at 66-67.39. See supra notes 28-31 and accompanying text.40. Alberta M. Sbragia, Thinking About the European Future: The Uses of Comparison,

in EUROpOLTICS, supra note 5, at 257, 277-78.41. See, eg., Irving L. Horowitz, The Norm of llegitimacy- Ten Years Later, in LEGITIMA-

TION OF REGIMES 23, 25 (Bogdan Denitch ed., 1979) ("In Western capitalism and democracy,those societies most characterized by parliamentary representation, the problem has been thatwithin a mass society there has been a stretching out effect of representational government.").


on which [an institution] is based."'42 One might add a requirementthat the new entity remain, at least technically, subject to the ultimatecontrol of democratic institutions. Social legitimacy, by contrast,"connotes a broad, empirically determined societal acceptance of thesystem.

' 43

Weiler's distinction echoes throughout the literature on politicallegitimacy. For these purposes, the literature may be grouped intotwo broad categories: political philosophy and political science.Political philosophy often concerns itself with questions of formal le-gitimacy, trying to describe the ideal political system against which theexisting structures should be judged. Political science, on the otherhand, focuses almost exclusively on social legitimacy by askingwhether in fact the citizens of a society accept the social order asbasically just.

The currently dominant emphasis on the EU's formal structureis consonant with the concerns of political philosophy. The search forformal normative principles as the source and sign of state legitimacycan be traced back to Rousseau,4 and it remains a strong current indemocratic theory today.' The hallmark of this approach is aconcern with constructing normative justifications for the state's exer-cise of power. Thus, attempts to legitimate the EU by altering itsstructure to more closely conform with norms of democratic account-ability draw their inspiration from this vision of legitimacy.

Political science, on the other hand, provides a new perspective.Seymour Lipset's definition of legitimacy is a classic example ofpolitical science's emphasis on social legitimacy: "Legitimacy involvesthe capacity of the system to engender and maintain the belief thatthe existing political institutions are the most appropriate ones for thesociety.'' 46 While Lipset's definition does not even hint at anythingbut popular acceptance as a mark of legitimacy, the literature did notat first clearly distinguish between political and social legitimacy; one

42. Weiler, supra note 5, at 2469.43. Id For a similar classification system, see DAVID BEETHAM, THE LEGrrIIMATION OF

POWER 4-16 (1991).44. J.G. MERQUIOR, ROUSSEAU AND WEBER: TWO STUDIES IN THE THEORY OF

LEGITIMACY 9, 57 (1980).45. See LESLIE GREEN, THE AUTHORrrY OF THE STATE 63-91 (1988) (noting political

theory's concern with normative justification); Bernard Manin, On Legitimacy and PoliticalDeliberation, 15 POL. THEORY 338, 352-59 (Lily Stein & Jayne Mansbridge trans., 1987)(grounding legitimacy in open social deliberation, as opposed to Rousseau's constructive grantof unanimous consent).

46. SEYMOUR M. LIPSET, POLITICAL MAN: THE SOCIAL BASES OF POLTICS 64 (1981).

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was thought to produce the other in the modem state. FollowingWeber, political scientists tended to find the legitimating basis of themodem state in rational justifications of the political order.' Latertheorists, however, emphasized and distinguished the purely subjectiveelements of legitimacy, reducing rationality to one element of theequation. John Schaar's emphasis on the continuing importance ofmyth, ritual, and citizen participation in the discursive construction ofsocial identity is typical of this trend.'

The content and rationality of the social order remain constituentelements of legitimacy for political scientists. Most important isJEirgen Habermas's argument that a "legitimation crisis" in moderncapitalist states can arise if a state's need to legitimate social andeconomic intervention outstrips the capacity of the dominantindividualist ideology to support it.49 However, even thoughHabermas believes that claims of legitimacy may theoretically beconstructed so as to allow rational testing-a "truth" independent ofpsychology-in the end he is still interested in explaining thesubjective reactions of citizens to the state."

While these theorists were concerned with the legitimacy ofnation-states, their focus on subjective factors transfers well to multi-national entities. One need look no further than the European Courtof Justice (ECJ) to see that acceptance is more important than formallines of authority. The ECJ's nominal powers are limited. Memberstates or the Commission can bring suit for a violation of treatyobligations, and there are other narrow categories of jurisdiction overdirect actions, but the Court has no effective means of enforce-ment." However, the ECJ has been able to persuade national courts

47. See, eg., Max Weber, Legitimacy, Politics and the State, in LEGITIMACY AND THESTATE, 32-34 (William Connally ed., 1984) It should be noted that Weber saw legitimacy strictlyas a social phenomenon not always produced by rational justification resembling formal le-gitimacy; it was only in the modem state that he saw rationality as the dominant legitimatingtool. Id. at 32-33. See also JOHN H. SCHAAR, LEGITIMACY IN THE MODERN STATE 19-22 (1981)(noting a gradual shift from the strictly formal concerns of political philosophy to the empiricalapproach of modem political science).

48. SCHAAR, supra note 47, at 15, 37-42. See also BtETHAM, supra note 43, at 4-18 (distin-guishing between formal and subjective elements of legitimacy).

49. JIlrgen Habermas, What Does a Crisis Mean Today? Legitimation Problems in LateCapitalism, 40 Soc. RES. 643 (1973).

50. See JORGEN HABERMAS, LEGTIMATION CRISIS 95-110 (1975) (arguing that perceivedlegitimacy can be explained and tested by reference to accepted conceptions of morallegitimacy).

51. EC TREATY art. 169, 170, 164-88; Martin Shapiro, The European Court of Justice, inEUROPOLITICS, supra note 5, at 123, 124-26. See generally NUGENT, supra note 21, at 178-87


to refer cases to it and give force to its judgements. 2 The ECJ iseffective because it is respected by (and respectful of) the nationalcourts, not because of its nominal power. 3

Similarly, the Single European Act had an influence out ofproportion to its formal effects. The impact of the 1992 initiative wasmuch more a result of its influence on expectations and attitudes thanof the institutional and ideological changes it wrought. 4 Additionalsupport for the importance of perception in international interactionscan be found in an important branch of international relations theoryemphasizing the significance of cognitive factors in building a stablecommunity among a group of states.55

The political science literature suggests a serious flaw in thecurrent debate on democratic reform in the EU. Reform proposalsfocusing exclusively on the balance of authority between existing EUinstitutions only address the formal legitimacy of EU institutions, asexpressed by chains of democratic accountability.56 It seems clear,though, that EU reformers are more concerned with real politicalresults than abstract forms of governance. If so, social legitimacy isnot just another issue to be considered. It is the most important issue.In looking only at technical democratic accountability, those trying tofill the democratic deficit have confused means and ends; formalstructure helps to engender social legitimacy, but it is not the samething. For instance, the key to understanding the different reactionto a lack of formal accountability in the French bureaucracy, ascompared with the European Union, is social legitimacy: a wide-spread sense that the political institution is an appropriate and

(describing the powers of the ECJ).52. G. Federico Mancini, The Making of a Constitution for Europe, in THE NEW EC, supra

note 2, at 177, 184-85.53. Id. See also Weiler, supra note 5, at 2420-22.54. See Hans Kastendiek, Convergence or a Persistent Diversity of National Politics?, in THE

POLITICS OF 1992: BEYOND THE SINGLE EUROPEAN MARKET 68,83 (Colin Crouch & DavidMarquand eds., 1990).

55. See, e.g., BARRY BUZAN, PEOPLE, STATES, AND FEAR: THE NATIONAL SECURITYPROBLEM IN INTERNATIONAL RELATIONS (1983) (arguing that concepts of community andsecurity deserve greater emphasis in the study of international relations); KARL W. DEUTSCHET AL., POLITICAL COMMUNITY AND THE NORTH ATLANTIC AREA (1957) (describing thephenomenon of "security-communities" wherein the societies have attained a notion of"community" such that the prevailing mood reveals a strong expectation of the peacefulresolution of problems). But see JOSEPH M. GRIECO, COOPERATION AMONG NATIONS:EUROPE, AMERICA, AND NON-TARIFF BARRIERS TO TRADE (1990) (arguing in the "neorealist"tradition that international cooperation is governed above all by mutual rivalries and thedistribution of power).

56. See supra notes 20-34 and accompanying text.

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integral part of the accepted social order. The ideal forms of directdemocratic control do not exist in practice in the modem state. Asense of social legitimacy makes up for any gaps in the formal chainsof accountability when the system falls short of the unattainabledemocratic ideal.

When proposals to narrow the democratic deficit are evaluatedagainst the need for a public sense that EU institutions and actionsdeserve respect and acceptance, the weaknesses of a reform strategyfocusing on the European Parliament become apparent. TheEuropean Parliament as an institution, while formally more democrat-ic than the other Union organs, does not have enough prestige andrespect among ordinary European citizens to single-handedly bridgethe Union's democratic deficit. More importantly, available evidenceindicates that vesting greater power in the European Parliament isunlikely to increase its stature enough to allow it to play the role ofthe great legitimator.

The European Parliament's public image at the moment (to theextent it has one) is wholly unenviable. A blunt but accurate assess-ment of the general perception of the European Parliament is that itis a "'yuppy' tourist club or 'gravy train"' which is "relativelyunknown and widely misunderstood" by the public at large.58 Thisimage has been reinforced by the national parties' tendency to useEuropean Parliament seats as sinecures or convenient places forinconvenient people.59 Interest in the European Parliament andawareness of its work remain quite low, despite the attempt to engagepublic interest and participation with the move to direct elections in1979. 60 Furthermore, European elections have done little to boostthe sense of a European polity. Elections have turned almost exclu-sively on national political issues. 6' More surprisingly, even many of

57. See Joseph Rothschild, Political Legitimacy in Contemporary Europe, in LEGITIMATIONOF REGIMES, supra note 41, at 37, 39-40. See also BEETHAM, supra note 43, at 33 (noting thatlegitimacy is needed to enable governments to withstand shocks and failures).

58. Lodge, supra note 34, at 58-59, 61.59. Williams, supra note 5, at 169.60. MILES HEwsToNE, UNDERSTANDING ATTITUDES TO THE EUROPEAN COMMUNITY: A

SOCIAL-PSYCHOLOGICAL STUDY IN FOUR MEMBER STATES 36 (1986) (collecting and analyzingpublic opinion data and concluding that Europeans are generally neither informed about norinterested in the European Parliament).

61. HOLLAND, supra note 5, at 146-47; DEREK W. URWIN, WESTERN EUROPE SINCE 1945:A POLITICAL HISTORY 368 (4th ed. 1989). This fact remains true even when the EuropeanParliament undertakes relatively high-profile initiatives for major reforms in the Community,such as the Draft Treaty on European Union. Id. at 379-80.


the referenda held on specific European issues have not significantlyincreased public interest, but have been resolved on the basis of thenational politics of the day.62

One could argue, of course, that the low level of interest inEuropean Parliament elections is perfectly rational given theParliament's relative insignificance in the Union's present governingprocess.63 Perhaps a more powerful European Parliament wouldattract more interest and better-known candidates. Recent history,though, gives reason to doubt this optimistic assessment. First, eventhe referenda which directly determined national policy towards theEU have not focused much attention on European issues.' Second,the recent gains in the European Parliament's power have not beenaccompanied by a rise in public interest in that institution. The SingleEuropean Act significantly increased the European Parliament'sconsultative role in the formation of legislation, gave it the power toassent to or reject all new trade or cooperation agreements, andadded the requirement of European Parliamentary consent to theaccession of any new country to the Union.65 These powers weremodest, but came packaged with the high-profile 1992 project and theaccompanying sharp rise in interest and expectations regarding theEU as a whole. The electoral result? Turnout at the 1989 EuropeanParliament elections declined significantly to an average of 58.4percent, quite low by European standards.66

Such evidence as exists is not conclusive. It is possible that if theEU shifted more power to the European Parliament, the Parliamentwould become a more significant part of European life. Perhaps anincrease in the formal democratic legitimacy of the Union would evenmake participation in European elections so much more significant forthe peoples of Europe that the entire enterprise would acquire thewidespread social legitimacy it seeks. But formal legitimacy is not thesame as social legitimacy; it is an instrument through which theultimate goal of social legitimacy may be attained. Furthermore,while the available evidence does not absolutely rule out the

62. NUGENT, supra note 21, at 374 ("I]t is hard to sustain a case that [referenda] haveadded very much to the democratic base of the Community: partly because of their infrequency,and partly because at least three of them were not genuine attempts to consult the citizenry butwere the consequences of internal politicking.").

63. See supra notes 25-26 and accompanying text.64. See supra text accompanying note 62.65. Single European Act, supra note 2, arts. 7-9; Williams, supra note 5, at 164.66. See HOLLAND, supra note 5, at 54; HENWsTONE, supra note 60, at 213.

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possibility of legitimating the EU through changes in the EuropeanParliament alone, neither does it provide any support for theconfident assertions of the proponents of such change.

IV. A NEW DIRECTION

It is nonetheless valid to ask why the adoption of the familiartrappings of parliamentary democracy should not provide the sociallegitimacy that would bridge the democratic deficit. It is obviouslynot the nature of parliamentary systems in general that would leavethe reformed EU less legitimate than its constituent states. Implicitso far in the discussion is the answer: the form of government at theEuropean level is not the cause of current problems. Rather, thequestion of whether the European Union itself is an appropriatepolity by which the citizens of its member states can be governed isthe central issue. The challenge is not to reform the mechanisms bywhich the people are governed, but to reconsider the boundaries ofpolitical space.

Weiler recognizes that democratic theory alone cannot prescribethe territorial limits of a legitimate government, the area within whichlegitimate coercion by a majoritarian government can take place.67

Coercion is inevitable; no society is perfectly homogeneous, and everypower struggle has winners and losers. Social legitimacy, not formallegitimacy, holds society together despite the imposition of onegroup's will on another. Robert Dahl, on whom Weiler drawsheavily, provides an apt example:

The criteria of the democratic process presupposes the rightfulnessof the unit itself If the unit itself is not a proper or rightful unit,then it cannot be made rightful simply by democratic procedures.If the United States were to compel Costa Rica to become thefifty-first state, would not Costa Ricans rightly feel-and wetoo-that a grave injustice had been done?6'

Of course, in the European Union the change in political boundariesis brought about by the consent of elected representatives rather thanby forcible conquest. The point, however, is that the question of thelegitimacy of the polity is prior to the question of the procedures by

67. Weiler, supra note 5, at 2471.68. Robert A. Dahl, Federalism and the Democratic Process, in LIBERAL DEMOCRACY 95,

103-04 (NOMOS XXV, J. Roland Pennock & John W. Chapman eds., 1983); see also LEABRILMAYER, JUSTIFYING INTERNATIONAL AcTS 55-55 (1989) (posing the hypothetical case ofone country annexing another and attempting to legitimate the act through an appeal to formaldemocracy).

1994] DEFICIT REDUCTION IN THE EUROPEAN UNION 279

which it constitutes itself and through which it acts. Normal represen-tative principles fall short when a profound shift in the foundation ofthe polity is considered.

Weiler also argues that a new federal democratic polity is initiallyless legitimate than its constituent parts.69 As the polity becomeslarger, the ability of any particular group to influence policy is diluted.It may at first seem odd to say that a political unit that is larger isipso facto less democratic than a smaller one; one does not think ofthe German government as less democratic than that of Portugalmerely because Germany is seven or eight times larger and eachindividual's influence is less in Germany. The ultimate legitimatingsolution is the boundary shift outlined above-the constituent groupsof a new federal polity, formerly the highest arenas of political power,must adjust to the idea that they can now be overridden by the othergroups.70 This adjustment is difficult and gradual. Political attach-ments based on emotion rather than reason cannot be changedovernight; much time and effort will be expended before the newpolity is accepted as the valid area within which majority rule applies.The key to legitimacy is not formal democracy but a popularacceptance of the system.

Given that the challenge is to bolster the social legitimacy of theEU by bringing about a subjective redefinition of the polity, how canthat challenge be met?- Weiler's analysis stops here; he asserts onlythat it is an "open question" whether the proper conditions forpopular acceptance of a redefined political boundary exist.7' Perhapsan answer is implicit in his emphasis on the importance of the passageof a transition period and his optimistic view of the 1992 initiative'seffects in mobilizing pro-Union opinion.'

It is doubtful that the success of projects like 1992 will eventuallybuild popular acceptance of the Union order based solely on the EU'sability to advance people's material interests. It may be true that anineffective government will be unable to maintain social legitimacy,but it does not follow that an efficient government will automaticallyachieve legitimacy. As Joseph Rothschild argues, efficiency can neverfully substitute for legitimacy.73 No government is perfectly efficientin achieving material goals, and whether the inevitable everyday

69. Weiler, supra note 5, at 2471.70. Id. at 2470.71. Id. at 2473-74.72. Id. at 2471-72, 2480-83.73. See Rothschild, supra note 57.


frictions and imperfections of government are tolerated depends onthe independent social legitimacy of the government. 4 As with anemphasis on formal structure, an exclusive focus on economic resultsobscures the central issue of subjective political identity.

V. TRANSFORMING THE POLITY

Constitutionalism provides the best route for a self-consciousredefinition of the European polity. Although the substance of a newconstitution for Europe does matter, the process of deliberate publicmobilization and political transformation inherent in constitutionmaking is more important than the content of the final document.Constitutionalism is not used here to denote centralism, asEuroskeptics often fear.75 Indeed, as will be seen below,constitutionalism can serve to guard against overcentralization.

A. The Virtues of Constitutionalism

The development of the European Union has been gradual bydesign. The neofunctionalists, long the dominant group amongintegration theorists, argued that attempts to integrate Europe wouldlead to "spillover" amongst related areas of concern and would inspireself-interested pressure groups to demand greater integration in thename of efficiency.76 Even after neofunctionalist theory was largelyabandoned,77 European institutions drawing on similar inspirationshave lived on.78

74. Id at 48-49.75. Cf. Moravcsik, supra note 2, at 41,53 (discussing British conservatives' distrust of both

written constitutions and centralizing tendencies within the EC).76. See generally ERNST B. HAAS, THE UNITING OF EUROPE (1957) (outlining an early

version of neofunctionalism); LEON N. LINDBERG & STUART A. SCHEINGOLD, REGIONALINTEGRATION: THEORY AND RESEARCH (1971). Neofunctionalism is a branch of integrationtheory focusing on the role of international institutions in promoting cooperative economic andsocial problem-solving. The hope is that as international institutions prove their utility in solvingpractical material problems, participants will be encouraged to address other, related problemsthrough joint action and will develop ties to the institution and each other that will cut acrossnational boundaries and cement peaceful political relationships. Id. at 6-8.

77. Ernst B. Haas, Turbulent Fields and the Theory of Regional Integration, 30 INT'L ORG.173 (1976), is generally read as neofunctionalism's eulogy. Haas methodically and comprehen-sively showed that the core assumptions of these theories were "becoming less and less relevantto the behavior patterns actually displayed by governments active in regional organizations."Id.

78. See generally BURGESS, supra note 12, at 32-33 (describing the incrementalist design ofthe EC).


The underlying premise of the neofunctionalist approach, thateconomic efficiency will necessarily create social legitimacy, ismistaken.79 Furthermore, the gradualist approach poses specialdangers in today's world. A gradual buildup of ties between thepeoples and nations of Europe was certainly needed to lay thegroundwork for a radical transformation of the polity. Perhaps thetransformation could occur by itself over time. The problem is thatsuch a transformation is needed now. For reasons discussed below,the EU is at a unique crossroads of opportunity and danger."0 Theexisting concerns over the democratic deficit clearly indicate that therealities of new European institutions have outstripped the capacityof existing national-citizen paradigms to legitimate them. The crisisof legitimacy is not something that will develop into an obstacle toEuropean development in the future; it is here now.

Bruce Ackerman's work with the United States Constitutiondescribes the way in which constitutionalism is capable of sparking thedecisive paradigm shift and bringing about a transformation of thepolity. Ackerman analogizes constitution making with revolution.8'Revolution is a political activity capable of breaking history in two:the period before the revolution is different in kind from what comesafterwards.' While revolutions are usually mounted by enemies ofthe regime, Ackerman's idea can encompass a consensual revolutionas well. In a consensual revolution, the attachment to the new regimeborn of long struggle and sacrifice present in violent revolutionswould be lost. However, the crucial element of revolution is that themobilized population thinks that there is an active revolution, thattheir purpose is to reconstruct the political order with exceptionalseriousness and attention.83 Revolutionary legitimacy, though oftenassociated with a violent rebellion against the status quo, at core restson a claim that one is acting in the name of the people, in thepeople's interest, and outside the normal channels of government.'Once the revolution declares itself a success, a constitution can serveto solidify and enshrine the changes it has produced. Ackerman's

79. See supra text accompanying notes 73-74.80. See discussion infra part IV C.81. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 204-212 [hereinafter FOUNDA-

TIONS]. Ackerman builds upon Hannah Arendt's description of revolution as both a break with,and a reinterpretation of, the past. See HANNAH ARENDT, ON REVOLUTION (1963).

82. FOUNDATIONS, supra note 81, at 204-06.83. Id. at 203-04; BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 5-6 (1992)

[hereinafter LIBERAL REVOLUTION].84. FOUNDATIONS, supra note 81, at 170-72.

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model, naturally, is the United States Constitution, which was therevolutionaries' attempt "to give self-conscious structure to the greatpublic stage they had built for themselves."'

Ackerman's concept of "higher lawmaking"86 is also relevant.It consists of four phases: signaling entry into the constitutional pro-cess, proposing changes, mobilizing popular deliberation, andcodifying the law.' Higher lawmaking takes place within an existingsystem, and lacks the Sturm und Drang of full-scale revolution tocapture popular attention. However, the procedure of constitutionaldebate itself sets off enough signals of political importance to increasethe salience of the issues for the people as a whole and to engagethem in the debate.'

Any transformation of the EU would not fit neatly into either therevolutionary or higher lawmaking pattern. The changes that wouldlegitimate a pan-European polity are neither within the boundaries ofthe current system nor wholly destructive of it.89 Whatever thehybrid constructed, however, the key point is the same. The way totransform political identity is to take center stage in the public arenaand loudly announce that the question of political self-definition isopen for debate. Constitution making is an easily recognizedstatement of such a purpose in Western states. The process ofcreating a constitution with mass participation clarifies and focuses de-bate on the issues, leaves evidence of what was agreed upon, and isin the end legitimated by the process that went into making it.

B. Treaties Cannot Substitute for a Constitution

The treaties establishing and modifying the EU, ° together withthe associated ECJ jurisprudence, are not a substitute for a constitu-tion. While the existing body of law serves some of the same defining

85. Id. at 206.86. Id. at 266.87. Id. at 266-67.88. Id. at 285-87.89. While any new European system would, necessarily, be rooted in the EC experience,

the creation of a constitution for one European polity is outside the treaty paradigm of an

agreement between separate polities. See discussion infra part IV D (considering proposals forchanging the EU).

90. The most significant treaties are the TREATY ESTABLISHING THE EUROPEAN COALAND STEEL COMMUNITY [ECSC TREATY], the TREATY ESTABLISHING THE EUROPEAN ATOMICENERGY COMMUNITY [EURATOM TREATY], the EC TREATY, the Single European Act, and theEU TREATY.


and governing purposes as a constitution would, it is not now and willnot become capable of serving the necessary legitimating functions.

There are several substantive weaknesses in the existingtreaties.91 First, as treaties, they are addressed exclusively to states,not to citizens. There is no detailed concern in the treaties withindividual fights or civil libertiesO2 The ECJ's vague promise that itwill restrain arbitrary government93 is a poor substitute for realconcern about the individual's relation to European authority. 4

Second, the treaties do not adequately serve a constitution'sfunction of constraining political power. Because of their setting ininternational law, the treaties' language is all enabling, not restrictive.The international law paradigm begins with a presumption of theautonomy of the sovereign state, and unless one can point to a sourceof authority limiting state action it is not constrained. 5 The focus onenablement allows a virtually unlimited use of the treaties' languageto expand EU competence, with little or no language that can be citedas a countervailing limiting principle. The first step towards address-ing this imbalance explicitly is the insertion of the "subsidiarity"principle in the Maastricht treaty.' However, this principle, whichin theory limits the Union to performing those functions that cannotadequately be performed by member states, has been criticized as"weak, subjective, and open-ended."' The growing reality of actionwithout unanimous consent of the member states, either by majorityvote of the Council of Ministers or the independent action of the ECJor Commission, makes the lack of any clear limits on the expansionof EU power troubling and strengthens the hands of those seeking to

91. For similar critiques of the treaty-based paradigm, see Mancini, supra note 52, at 178;Frank Vibert, Europe's Constitutional Deficit, in JAMES M. BUCHANAN ET AL., EUROPE'SCONSTITUTIONAL FUTURE 69, 87 (1990).

92. Indeed, there was none at all until the Maastricht treaty. EU TREATY art. F ("TheUnion shall respect fundamental rights as guaranteed by the European Convention for theProtection of Human Rights and Fundamental Freedoms ....").

93. See, e.g., Case 473, J. Nold KG v. Commission, 1974 E.C.R. 491, 14 C.M.L.R. 338(1974) (looking to international treaties and member state constitutions as sources of individualrights in EC law); Case 11170, Internationale Handelgesellschaft v. Einfuhr-und-VorratsstelleGetreide und Futtermittel, 1970 E.C.R. 1125, 11 C.M.L.R. 255 (1972) (recognizing thatprotection of fundamental individual rights is implicit in EC law).

94. See Joseph H.H. Weiler, Eurocracy and Distrust, 61 WASH. L. REv. 1103, 1105 (1986).95. See S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.IJ. (Ser. A) No. 10; see also Eric Stein,

External Relations of the European Community, in 1 COLLECTED COURSES OF THE ACADEMYOF EUROPEAN LAW 115, 132 (1991) (noting this feature in EC law).

96. EU TREATY, art. G(5).97. See Vibert, supra note 91, at 80; HOLLAND, supra note 5, at 184.

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erode support for the EU by warning of a virtual dictatorship of theBrussels bureaucrats.98 Whatever one thinks the final structure andlimit of EU power should be, the failure to clearly delineate thosepowers erodes the EU's legitimacy.

The current substantive defects in the treaties are perhapsremediable by amendment, but there are other inescapable featuresof treaties in general that substantially undercut the quest for sociallegitimacy. Treaties necessarily fuel the elitist tendencies of theUnion.99 They are negotiated by national executives in highlytechnical, closed-door bargaining."° Word of the course of negotia-tions gets out, but news leaks are hardly interchangeable with masspolitical participation. 1 Nor do treaties have the same inspirationalpotential as constitutions. Treaties do not carry a sense of uniqueimportance, an earnest declaration of the purposes and aspirations ofa people. Neither do they go out of their way to provoke a thought-ful debate or consensus on the key features of the new polity. Toreturn to the subject of legitimacy, the key to socially legitimate au-thority is to help the individual answer these questions: "Who am Ias an individual? Who am I as a member of this society? Who amI as a mortal member of humanity?"'" The dense, dry languagedominating the EU treaties is of no more help in answering thesequestions than is the telephone book.

Although constitutions have major advantages over treaties asvehicles for real change, as a practical matter constitutionalism mustovercome Euroskeptical biases. Constitutionalism has a bad nameamong those who seek to limit the further growth of the Union,probably because the word calls forth associations with a desire for astrong, centralized EU authority at the expense of state sovereign-ty. 3 Although the need for social legitimacy will be even greaterif the EU grows significantly in power-and such growth is morelikely than not-constitutionalism is primarily a means of legitimatingand defining the European order, regardless of what its content may

98. See supra notes 20-31 and accompanying text; see also Weiler, supra note 5, at 2450-53.99. Sbragia, supra note 40, at 273-74.

100. See PINDER, supra note 26, at 201.101. See Williams, supra note 5, at 173, 175 (stressing the lack of public participation and

leadership accountability within the EU today).102. SCHAAR, supra note 47, at 40.103. PINDER, supra note 26, at 3. For other works that view constitutionalism similarly see

O'Connell, supra note 32; Charles Grant, An Expanding Universe: Time for a New Constitution,ECONOMIsT, July 7,1990, at 29; A CONSTrUmON FOR EUROPE, supra note 32 (collecting essaysby pro-expansion authors favoring constitutionalism).


be. A stronger social base would benefit the Union as it exists today,and in any case would serve to cement whatever European accordemerges. For that reason, some who strongly oppose centralizationsupport constitutionalism, on the theory that only a well-defined,consensually legitimate crystallization of the political order can haltthe expansion driven by European institutions."4

The fate of Canada's constitutional referendum provides aninstructive cautionary tale. Though not technically a treaty, theconstitutional proposal shared the relevant features of the treatiesdiscussed above. It was negotiated by the provincial and nationalexecutives in physical and symbolic seclusion from the rest of thesociety, then presented to the people as a conclusive agreement. 5

The tone and style of the proposal were, to say the least, notcalculated to set hearts racing in Saskatoon. When the referendumcame the proposal was soundly rejected."l Two common explana-tions for the failure of the referendum were that the people simplydid not feel they understood the proposal sufficiently, and that theydid not see why it was important to make changes at that time. 0 7

The elected leaders of the provinces had agreed after a long anddifficult debate on the best way to reform the Canadian politicalorder; they failed because they left the people out of the process.

C. Opportunity and CrisisSeveral forces have converged to ensure that Europe can and

must seize the moment for constitutional reform. Essentially, theybreak down into two categories: internal dynamics and externalchange. Internally, the Habermas-like tension between the functional-interventionist need for the legitimacy of an expanding EU and the

104. See, e.g., James M. Buchanan, Europe's Constitutional Opportunity, in EUROPE'S CON-STITUTIONAL FUTURE, supra note 91, at 1; Vibert, supra note 91 (arguing for constitutionallimitations on EC power).

105. See Alan C. Cairns, Citizens and Their Charter: Democratizing the Process of Consti-tutional Reform, in THE MEECH LAKE PRIMER 109 (Michael D. Behiels ed., 1989); RichardSimeon, Political Pragmatism Takes Precedence over Democratic Process, in id. at 125; JenniferSmith, Representation and Constitutional Reform in Canada, in AFTER MEECH LAKE: LESSONSFOR THE FUTURE 69 (David E. Smith et al. eds., 1991).

106. Carol Goar, Canadians Do Find Unity - In Rejecting Leaders' Vision, TORONTO STAR,Oct. 27, 1992, at Al.

107. See, e.g., George Bain, Education is a Two-Way Street, MACLEAN'S, Nov. 2,1992, at 52(highlighting the Canadian public's feeling that the government failed to educate them on thereferendum); Mark Clayton, Behind 'English' Canada's Rejection of Unity Pact, CHRISTIAN SCI.MONITOR, Nov. 4, 1992, at 3 (describing the post-vote sentiment that the need for change hadnot been adequately explained).

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limits of the underlying ideology has been building for years. Talk ofthe democratic deficit is not a recent phenomenon.' °s However, itgained some urgency with the relaunch of the EU in the SingleEuropean Act, an action inspired by: juridical evolution; political andeconomic reaction to the "Eurosclerosis" of sluggish economic growth,inflation, and political drift in the 1970s; and adroit institutionalmaneuvering within the EU.' 9 The symbolic success of the 1992initiative brought questions of EU identity forward on the agenda andraised their importance to the public at large.

The development of public opinion in the EU has also reacheda stage where mobilization and redefinition are possible. There iswidespread public support for the Union and for pan-Europeanideals."0 The support is unfocused and thin, more a vague emotion-al sense than a carefully developed position."' However, it doessuggest that the citizens of EU member states may well be preparedfor precisely the sort of persuasion and intellectual solidification thatconstitutional debate would bring to their generally positive feelingstowards Europe.

Recent changes in Europe are also highly conducive to transfor-mation of the EU order. The revolutions of 1989 and the end of thecold war have destroyed the old external order and forced the EU toredefine its position, whether it wants to or not. The vacuum ofpower and political organization left by the end of the superpowerconfrontation will inevitably be filled. There is thus a uniqueopportunity to seize the moment of transition and consciously guideit in the desired direction."2 The internal and external develop-ments are mutually reinforcing: the EU is a natural candidate to stepinto the breach because of its recent activism. Most importantly, the

108. See, e.g., P.D. DASTOGLOU, BASIC PROBLEMS OF THE EUROPEAN COMMUNITY 81-83(1975); DAvID MARQUAND, PARLIAMENT FOR EUROPE 64-66, 87-90 (1979); Karl Bracher,Democracy, in EUROPEAN COMMUNITY: VISION AND REALITY 99 (James Barber & BruceReed eds., 1973). See generally URWIN, supra note 12, at 166-70 (outlining early pressures fordemocratization).

109. See generally David R. Cameron, The 1992 Initiative: Causes and Consequences, inEUROPOLITICS, supra note 5, at 23 (tracing the convergence of forces leading to the 1992initiative). See also Keohane and Hoffmann, supra note 11, at 23-25 (finding the roots of theinitiative in national adjustments of political and economic policy).

110. See Jim Campbell et al., Implementing the Internal Market, in THE POLITICS OF 1992,supra note 54, at 138.

111. See HEWSTONE, supra note 60, at 206; HOLLAND, supra note 5, at 150-52.112. LIBERAL REVOLUTION, supra note 83, at 36-38.


task of institutional reform has been made much more urgent by thesudden disappearance of the prior order."'

These current opportunities are paired with clear risks. Theinternal opportunity for reform is imperiled by the uneasiness with thenew EU, as epitomized by the crises arising out of the Maastrichtreforms." 4 Development seems in danger of stalling, and prior agree-ments could fall apart. The external opportunity is paired with evenmore obvious risks: a failure to consolidate the EU as the anchor ofa new European order threatens a slide into a new pan-Europeandisorder with unforeseeable consequences. The benefits of actingnow, and the costs of failing to do so, counsel immediate action. Itis clear the Europe will change. The only question is whether thechange will be conscious or merely a random drift.

D. Some Substantive Suggestions

The aforementioned prescriptions could be criticized as allprocess and no content, and in a sense such criticism would beaccurate. The legitimating experience of debating and defining theEuropean political order is more important than the precise contoursof whatever substantive decisions are made by Europeans. The EUproject needs to be placed upon much firmer political and socialfooting to avoid the risk of falling apart. While the argument of thisArticle is that Europeans must come together and choose their ownpath, certain political ideas and institutions seem especially well-suitedto their needs.

First and most important among these is federalism. "Aha," criesthe Euroskeptic, "we suspected all along that your secret agenda wasa United States of Europe ruled by a paper fist from Brussels!" Notat all. As was the case with constitutionalism, federalism is an ideaunjustly set up as a threat by those who oppose further centraliza-tion."' Federalist ideas provide important principles to ensure alegitimate and stable European polity, regardless of the range of theEU's authority. The conflation of federalism with centralism in non-academic (and sometimes academic) European rhetoric obscures itstrue function." 6 In fact, federalism already exists to some degree

113. Laursen, supra note 3, at 240-41 (discussing the EC's actions in relation to the recentexternal and internal political changes in Europe).

114. See supra notes 18-19 and accompanying text.115. BURGESS, supra note 12, at 15. -116. In Britain, for example, federalism is treated as virtually synonymous with centralism.

See, e.g., Not Quite Pulling Together, ECONOMIST, Nov. 23, 1991, at 63 (quoting former Prime

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in the EU it like many authors, one accepts as its core notion a moreor less permanent division of competences between levels of govern-ment."7 For example, the competence to conclude internationalagreements is clearly divided between the EU and the member statesin a federalist manner; some functions are left to the states, whileothers are reserved to the Union alone."8 The important thing tokeep in mind is that federalism operates to exclude issues from thecompetence of the larger unit as well as to include them. Far frombeing a road to a unitary state, federalism is an alternative to it thatseeks to establish a stable division of power that should "no longer beviewed as a new unitary state in the making but rather as somethingdistinctive in its own right.""M9

Aside from stabilizing and defining the European order,federalism has normative contributions to make to the EU. Choosingfederal rather than unitary arrangements respects and incorporatescleavages between the constituent units.12 One of the key integra-tive maneuvers in the prelude to the 1992 initiative was the decisionto address interstate regulatory differences through a validation ofnational standards rather than through harmonization and theelimination of national differences.'2' The change is emblematic ofa federalist philosophy that attempts to accommodate difference, notobliterate it. As Weiler argues, such a federalism of cross-nationaland cross-cultural tolerance is one of the most important contributionsthe EU can make to the development of international relations."

The drive towards decentralization in many European states,including Belgium, Spain, and even France, appears at first glance to

Minister Thatcher attacking Maastricht as a "conveyor-belt to federalism").117. Dahl, supra note 68, at 95-96; HOLLAND, supra note 5, at 56.118. Generally, the EC has competence to make treaties on the subjects entrusted to it (e.g.

tariffs), while member states retain treaty-making authority in other areas (e.g. foreign policy).EC TREATY arts. 113,229-31,238; Case 27/70, ERTA, 1971 E.C.R. 263,10 C.M.L.R. 335 (1971)(extending treaty-making power to any internal competence). This division of authority has ledto the "mixed agreement" treaties, which both the EC and its member states sign in order toaddress issues failing within the authority of each. P.J.G. KAPTEYN & P. VERLAUEN VANTHEMAAT, INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES 773-76 (2d ed.1989). Though conflicts arise over the precise division of treaty-making authority between thestates and the Community, see Stein, supra note 95, at 115-32, the point remains that there is anexplicit division and allocation of powers between the two levels of authority.

119. BURGESS, supra note 12, at 18.120. Buchanan, supra note 104, at 2; Sbragia, supra note 40, at 279-80.121. Kastendiek, supra note 54, at 78-79. Mutual recognition of national standards was one

of the central innovations of the 1985 White Paper launching the 1992 initiative. White Paper,supra note 11.

122. Weiler, supra note 5, at 2479-81.


be in tension with the construction of a new, even larger Europeanpolity." If federalism is properly understood, though, the paradoxis resolved. European views of federalism emphasize subsidiarity, aconcept with varying definitions but essentially reducible to theproposition that governmental functions should be allocated to thesmallest unit capable of carrying them out effectively.24 Whetheror not subsidiarity would provide a justiciable limiting principle forEU actions, it at least provides intellectual coherence to a redistribu-tion of power from the nation-state that flows both up and down.Some functions, such as defense and macroeconomic policy, may bebetter performed on a higher level, whereas others, such as education,could be best served by control on the local or regional level.

Subsidiarity in the EU's context carries within it hints of thedemise of the European state. The argument could easily be madethat most important governmental functions are best performed eitheron as large a scale as possible, to maximize the advantages of size, oron as small a scale as possible, to maximize local control. It is at leasttrue that subsidiarity does not serve well as the great defender ofnational sovereignty, and that a federalist EU could pose especiallystrong threats to federalist states with strong internal cleavages.

Still, the idea of a "Europe of the regions" is best left aside forthe moment. As a practical matter, the European state system is tooentrenched to challenge directly. This is not only true in terms offormal political power, which could perhaps be overcome by aconstitutional mobilization, but in terms of the values of the peoplesof Europe." National identities, while not all-powerful, are still animportant part of the European political persona, and it is ahistoricalto think that they will disappear instantly. It is so unlikely thatEuropeans would be willing to abandon their national identities forlocal and European ties (that is, after all, the issue on which many ofthe current worries about legitimacy center) that any attempt toincorporate such a move in the short-run transformation of theEuropean polity is likely to derail the entire process. A Europe ofthe regions is something that could develop in the future-but notnow.

123. See generally FEDERALISM AND FEDERATION IN WESTERN EUROPE (Michael Burgess,ed., 1986) (analyzing national trends).

124. See supra notes 96-98 and accompanying text.125. Cameron, supra note 109, at 73-74; Sbragia, supra note 40, at 274-75.

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VI. CONCLUSIONThe European Union lacks sufficient democratic legitimacy in the

eyes of many who live within it. Moreover, the proposals that domi-nate the reform debate will not resolve the problem. They focus onthe mechanisms through which the EU acts rather than on the legiti-mate reach of its power to act at all. What is needed is a politics ofmobilization and consensus around the shape of the European order,whatever it will be, to reach agreement on the game as well as therules. Constitutionalism provides an arena for Europeans to engagein considered aspiration and self-definition. The point is not legalismfor its own sake, but producing what will truly be a "people'sEurope"-not because the leaders tried to protect the people's inter-est, but because the people built it themselves.

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